In October 2000, Congress created the U-Nonimmigrant Status (U-Visa). The U-Visa was specifically created for undocumented individuals who have been the victims of certain crimes while residing in the United States. Through the U-Visa program, undocumented individuals can become lawful permanent residents of the United States. Individuals may be eligible to apply for a U-Visa if:
(1) they are the victim of a certain qualifying criminal activity;
(2) have suffered substantial physical or mental abuse as a result of having been the victim of the criminal activity;
(3) they possess information about the criminal activity;
(4) were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime;
(5) the crime occurred in the United States or violated the laws of the United States; and
(6) they are admissible to the United States.
Victim of a Certain Qualifying Criminal Activity
The United States Citizenship and Immigration Services (USCIS) has defined the following crimes as qualifying criminal activity for which an individual can apply for U-Visa status: abduction, abusive sexual contact, attempt to commit any of the named crimes, being held hostage, blackmail, conspiracy to commit any of the named crimes, domestic violence, extortion, false imprisonment, felonious assault, female genital mutilation, fraud in foreign labor contracting, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, solicitation to commit any of the named crimes, stalking, torture, trafficking, unlawful criminal restraint, witness tampering, and other related crimes.
Have Suffered Substantial Physical or Mental Abuse as a Result of Having Been the Victim of the Criminal Activity
USCIS defines physical or mental abuse as “injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim.” Essentially, this means that the victim of the crime must have been harmed in some way. Physical abuse can include, but is not limited to, being punched, stabbed, or shot. Mental abuse includes, but is not limited to, emotional distress, stress and anxiety. Sometimes a psychological evaluation is used to document the effects of mental abuse.
Possess Information About the Criminal Activity
The applicant (the person that was the victim of a crime) must possess information about the criminal activity of which they were the victim. Generally, simply being the victim of the crime is sufficient to satisfy this requirement. However, there are special situations where the applicant may not be considered to “possess information about the criminal activity” for reasons such as incapacity or age. An individual under the age of sixteen (16) or one who is unable to provide information about the criminal activity due to disability can use their parent, guardian or “next friend” to provide information about the criminal activity to law enforcement.
Were Helpful, are Helpful, or are Likely to be Helpful to Law Enforcement in the Investigation or Prosecution of the Crime
This is by far the most important requirement to qualify for U-Visa Status. The applicant must cooperate with law enforcement in the investigation and/or prosecution of the crime. Law enforcement includes, but is not limited to, police officers, detectives, sheriffs, and attorneys from the State’s Attorneys Office. The applicant must comply with all reasonable demands made from law enforcement in the investigation and/or prosecution of the crime. Cooperation includes, but is not limited to, informing the police of the criminal activity, providing law enforcement with a statement of the incident that encompassed the criminal activity, going to the police station for suspect identification, going to the hospital for medical examinations/attention, and testifying in court on behalf of the State’s Attorneys Office.
Crime Occurred in the United States or Violated the Laws of the United States
The applicant must have been a victim of a qualifying criminal activity within the United States, Indian country, military installations, or any territories and possessions of the United States. Satisfying this requirement is generally fairly easy, although that is not always the case.
Are Admissible to the United States
The applicant must be admissible to enter the United States. The Immigration and Nationality Act (INA) outlines various reasons why an individual would be considered inadmissible to enter the United States. These reasons can range from being convicted of certain criminal activity to having engaged in certain actions. Due to the importance that the applicant be admissible to enter the United States, it is recommended that the applicant consult with an attorney to determine whether they satisfy this requirement.
U-Visa Process
The first step is for the applicant to contact their local police department and report the criminal activity. Next, the applicant should provide the local law enforcement agents with a statement of the events that occurred. At this point, the local law enforcement agents may request that you cooperate in various other forms, such as showing up to the police department to identify any possible subjects.
Next, you should begin to seek the assistance of an attorney to help you throughout the process. An attorney can be very helpful during this phase.
The qualifying criminal activity may then be referred to the State’s Attorneys Office who will decide whether criminal charges will be brought against the person who committed the crime against you. If the State’s Attorneys Office decides to pursue criminal charges, they will generally ask you to provide a statement of the incident and will ask you to be available to testify in court against the person who committed the crime against you.
If you have cooperated with all reasonable demands made by law enforcement agents, your attorney will then send Form I-918B to either the police department or the State’s Attorneys Office. Depending on the practices of the State’s Attorneys Office in the country where you live, they may not comply with Form I-918B until the criminal matter has been concluded. Form I-918B is a form that MUST be signed by a law enforcement agency certifying that you have cooperated with the investigation and/or prosecution of the criminal activity. This process can take anywhere from one to three (1-3) months, depending on the county where you live.
After your attorney has received the signed Form I-918B from the law enforcement agency, they will complete various other applications that make up the U-Visa application packet and they will mail it to USCIS for processing.
The U-Visa program also allows the applicant to include qualifying family members on their application for U-Visa status. If the applicant is under the age of twenty-one (21), they can include their spouse, children, parents and unmarried siblings under the age of 18. If the applicant is over the age of twenty-one (21), they can only include their spouse and children. Additionally, these qualifying family members do not need to be present in the United States in order to be included with the applicant’s U-Visa application.
Currently there is a waiting time for the processing of U-Visas. The reason being that Congress has approved only 10,000 U-Visas to be approved every year. At the moment, there are more U-Visas filed than visas available on a yearly basis. Due to this circumstance, there is a wait time of two to three (2-3) years for a U-Visa to be processed and approved. Unfortunately, the applicant and their qualifying family members cannot derive any immigration benefit during this waiting period. This means that they are still considered undocumented in the United States and they cannot apply for a work permit. Additionally, any qualifying family member who are located outside of the United States must remain outside of the United States until their U-Visa is approved and they are granted U-Visa status.
After the U-Visa has been approved, the applicant and their family members are placed in U-Visa status. All individuals must remain in U-Visa status for a period of three (3) years. After that period of time has been satisfied, the applicant and their qualifying family members are able to submit adjustment of status applications to become a lawful permanent residents of the United States.